Mental Capacity Act (2005) Deprivation of Liberty Safeguards (MCA DOLS)
- The Deprivation of Liberty Safeguards are an amendment to the Mental Capacity Act 2005. They apply in England and Wales only.
- The Mental Capacity Act allows restraint and restrictions to be used – but only if they are in a person’s best interests.
- Extra safeguards are needed if the restrictions and restraint used will deprive a person of their liberty. These are called the Deprivation of Liberty Safeguards.
- The Deprivation of Liberty Safeguards can only be used if the person will be deprived of their liberty in a care home or hospital. In other settings the Court of Protection can authorise a deprivation of liberty.
- Care homes or hospitals must ask a local authority if they can deprive a person of their liberty. This is called requesting a standard authorisation
- There are six assessments which have to take place before a standard authorisation can be given.
- If a standard authorisation is given, one key safeguard is that the person has someone appointed with legal powers to represent them. This is called the relevant person’s representative (RPR) and will usually be a family member or friend. Where there is no-one to fulfil this role the Local Authority must appoint a Paid Representative
- Other safeguards include rights to challenge authorisations in the Court of Protection, and access to Independent Mental Capacity Advocates (IMCAs).
Judgment of the Supreme Court P v Cheshire West and Chester Council and another P and Q v Surrey County Council
On 19 March 2014, the Supreme Court handed down this judgment which has come to be known as the ‘Cheshire West case’
The judgment is significant in the determination of whether arrangements made for the care and/or treatment of an individual lacking capacity to consent to those arrangements amount to a deprivation of liberty.
The Supreme Court has clarified that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights in the following circumstances:
The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.
The IMCA’s roles and responsibilities under MCA DOLS
Under the MCA DOLS, there are a number of circumstances when IMCAs must act. These include the following:
- When the hospital or care home has requested an assessment about depriving a person of their liberty and there is no one else to represent that person. This is known as a 39A IMCA referral.
- When a hospital or care home has deprived a person of their liberty and that person (or their unpaid representative) requests the support of an IMCA in order to ensure they understand their rights. This is known as a 39D IMCA referral.
- When a hospital or care home has deprived a person of their liberty and there is a temporary gap in the appointment of an unpaid representative. This is known as a 39C IMCA referral.It is the responsibility of the Supervisory Body (Local Authority) to instruct an IMCA.
How to instruct an IMCA under MCA DOLS
It is the responsibility of the Supervisory Body (Local Authority) to instruct an IMCA.
The service is independent and free of charge
Mental Capacity Act Directory